ve damages. The court rejected defendant’s argument, relying on earlier Eighth Circuit case law construing Missouri law, that damages under Missouri law had to be limited to the 180-day period prior to plaintiff’s charge. “Missouri courts imposed this limitation by relying on federal precedent that Morgan clearly overrules.” (Citations omitted.) The court held that the compensatory-damage award was not excessive in light of the years-long harassment by co-worker Moore, including forced touchings, demands for sexual favors, foul verbal conduct, and threats of rape and murder. The court described the effect this had on plaintiff: 
Rowe testified to a constant fear of Moore and to experiencing panic attacks variously characterized by nausea, headaches, sweating, and hyperventilation. She was so afraid of Moore that she moved to a different home, obtained a gun card, purchased mace, and since June of 2000 has been eating lunch and taking coffee breaks in the women’s restroom to avoid any contact with Moore. Rowe indicated that her fear has adversely affected her relationship with her four children. Her treating psychologist testified that Rowe suffers from an anxiety disorder and that her prognosis is poor.
Id. at 783. The court continued: “Because it is difficult to quantify the extent of the psychic injury that months and years of unwanted touching and verbal abuse, combined with threats of murder and rape, might cause, it was for the jury, equipped as it was with the collective wisdom that life’s experiences confer, to determine the amount that would adequately compensate Rowe for that injury, and thus we decline to reduce the compensatory award.” (Citations omitted.)
	Bains LLC v. Arco Products Co., 405 F.3d 76 (9th Cir. 2005), affirmed the judgment of liability and the award of compensatory damages, but held that the award of $5 million in punitive damages to the Sikh-owned plaintiff was excessive and that the most that could be allowed was between $300,000 and $450,000. The court held that the $1 awarded in nominal damages on the § 1981 claim and the $50,000 awarded on the breach of contract claim supported an award of punitive damages.
	Wilbur v. Correctional Services Corp., 393 F.3d 1192 (11th Cir. 2004), affirmed the grant of judgment as a matter of law to the Title VII sexual harassment defendant because the jury’s answers to the special interrogatories removed any basis for the award of damages. Although the jury accepted plaintiff’s quid-pro-quo claim, the only tangible employment action giving rise to damages was her termination, and it found that her termination was not related to discrimination.
Punitive Damages
Entitlement
	Baker v. John Morrell & Co., 382 F.3d 816, 832 n.4 (8th Cir. 2004), affirmed the judgment on a jury verdict for the Title VII and Iowa Human Rights Act sexual harassment and retaliation plaintiff, including the awards of $839,470 in compensatory damages, $33,314 in back pay, $38,921 in front pay, $650,000 in punitive damages (remitted to $300,000), and $174,927 in attorneys’ fees and costs, a total of $1,386,632. Plaintiff filed suit only under Title VII, and after the verdict moved to amend her complaint to add a claim under the Iowa Civil Rights Act, which provides for uncapped compensatory damages but no punitive damages. That would allow her to keep all of her compensatory-damage award, and $300,000 of her punitive-damage award. District Judge Mark Bennett ultimately granted the motion under Rules 15(b) and 54(c), Fed. R. Civ. Pro., and the court of appeals affirmed. The court held that it would not consider the permissibility of allocating all $300,000 in Title VII damages to punitive damages, without a compensatory award under Title VII, because defendant did not raise the issue.
	See the discussion of Rowe v. Hussmann Corp., 381 F.3d 775, 782 n.6, 94 FEP Cases 520 (8th Cir. 2004), in the section above on “Compensatory Damages.” The court held that the million-dollar punitive-damage award was not excessive in light of the years-long harassment by co-worker Moore, including forced touchings, demands for sexual favors, foul verbal conduct, and threats of rape and murder. The court rejected defendant’s argument that it should not have been liable for punitive damages. “Recklessness and outrageousness may be inferred from evidence of “management’s participation in the discriminatory conduct,” . . . or where an employee’s repeated complaints to supervisors fall on deaf ears. . . . In light of Weston’s knowledge of Moore’s abusive conduct, his repeated failure to take effective action to put a stop to such conduct, and his defense of and excuses for that conduct, all chargeable to Hussmann, the evidence is sufficient to support the award of punitive damages.” Id. at 784 (citations omitted). The court held that the award was within the jury’s discretion. 
	Bains LLC v. Arco Products Co., Bains LLC v. Arco Products Co., 405 F.3d 76 (9th Cir. 2005), affirmed the judgment of liability and the award of compensatory damages, but held that the award of $5 million in punitive damages to the Sikh-owned plaintiff was excessive and that the most that could be allowed was between $300,000 and $450,000. The court rejected defendant’s argument that it could not be held liable for punitive damages because only a low-level attendant had engaged in discrimination:
	The district court reviewed the evidence with care, and concluded, correctly, that the jury could find that Davis was not a mere gas station attendant, but a supervisor. While ARCO claims that Davis had no managerial responsibilities, the evidence demonstrated that Davis had direct control over the daily fuel hauling operation and fuel carriers. Moreover, immediately after the termination of the contract, Davis himself took credit for getting Flying B terminated, bragging to non-Flying B drivers about his part in “kick[ing] those ragheads out” of the facility. 
	Even were Davis not a supervisor, there can be no question under the evidence that Lawrence was. Lawrence was ARCO’s official in charge of the Seattle terminal and, as Tim Reichert testified, Lawrence had full authority over safety issues at the terminal, including the power to lock Flying B out of the facility. The jury could conclude that when Flying B first complained to Lawrence about Davis’s racial harassment, Lawrence simply made excuses for Davis’s behavior and did nothing about it. And when Flying B repeated its complaints several times, Lawrence did nothing to restrain Davis, but instead terminated Flying B without even the thirty-days notice required by the contract.
	Davis testified that Lawrence was present on occasions when he called the Flying B drivers “ragheads.” The jury did not have to conclude, as ARCO urges, that Lawrence locked out Flying B only for safety violations. The jury could conclude, to the contrary, that Lawrence perceived a conflict between Flying B and Davis—over Davis’s harassment and intentional delays of those he called “ragheads”—and that Lawrence chose to back up Davis. That suffices for corporate liability. If a company official with sufficient authority to subject the company to vicarious liability backs-up a racist employee's racially-motivated conduct instead of protecting the victim from the employee, then the company is liable, even if the supervisor’s motivation is non-racial, such as loyalty to his subordinate or a desire to avoid conflict within the company. A written antidiscrimination policy does not insulate a company from liability if it does not enforce the antidiscrimination policy and, by its actions, supports discrimination.
Id. at *7–*8 (footnote omitted).
	Wilbur v. Correctional Services Corp., 393 F.3d 1192, 1205 (11th Cir. 2004), affirmed the grant of judgment as a matter of law to the Title VII sexual harassment defendant because the jury’s answers to the special interrogatories removed any basis for the award of damages. The court held that, even assuming the claim for punitive damages was not moot, the lower court did not err in dismissing it. It reasoned that, although plaintiff’s supervisors may have acted with malice or reckless indifference towards her, “she failed to establish a sufficient basis for imputing their conduct to CSC.” (Citation omitted.) The court added:
And, in this Circuit, “punitive damages will ordinarily not be assessed against employers with only constructive knowledge of harassment.” . . . In order to ground liability in an employer, the plaintiff must establish that “the discriminating employee was high[] up the corporate hierarchy” or that “higher management countenanced or approved his behavior.” . . . Even if, as Wilbur asserts, CSC’s corporate office had notice of the alleged sex discrimination as of February 2002, when she complained to CSC’s human resources department, Wilbur has offered nothing to establish that CSC’s higher management “countenanced or approved” the offending behavior of Wilbur’s supervisors. Moreover, to hold otherwise seems irreconcilable with the jury’s finding that CSC had “exercised reasonable care to prevent and correct promptly any sexually harassing behavior in the work place.” . . . Therefore, even if the issue is not moot, we conclude that the district court did not err in dismissing Wilbur’s punitive damages claim.
(Citation omitted.)
Evidence
	McCombs v. Meijer, Inc., 395 F.3d 346, 359, 95 FEP Cases 1 (6th Cir. 2005), affirmed the judgment on a jury verdict for the Title VII sexual harassment plaintiff. Plaintiff recovered $100,000 in punitive damages. The court rejected defendant’s argument that the lower court erroneously admitted evidence of its gross annual sales, because high volume does not mean high profit. The court held that defendant had not shown it was prejudiced, or that it was unable to pay the award. Judge Gilman dissented.
Affirmative Defense
	Hatley v. Hilton Hotels Corp., 308 F.3d 473, 477, 89 FEP Cases 1861 (5th Cir. 2002), reversed the grant of judgment as a matter of law on plaintiffs’ Title VII sexual harassment claims but affirmed the denial of punitive damages. The court held that, notwithstanding the inadequacy of the defendant’s handling of plaintiffs’ internal harassment complaints and earlier complaints filed by others, the defendant made out its affirmative defense:
Davidson was arguably an agent in a managerial capacity, and she may have acted with malice or reckless indifference to the rights of the plaintiffs within the scope of her employment. However, these actions were contrary to Bally’s good faith effort to prevent sexual harassment in the workplace, as is evidenced by the fact that Bally’s had a well-publicized policy forbidding sexual harassment, gave training on sexual harassmet to new employees, established a grievance procedure for sexual harassment complaints, and initiated an investigation of the plaintiffs’ complaints. These actions evidence a good faith effort on the part of Bally’s to prevent and punish sexual harassment.
Punitive-Damage Amounts After State Farm: Civil Rights Cases
	Lust v. Sealy, Inc., 383 F.3d 580, 590, 94 FEP Cases 645 (7th Cir. 2004), affirmed the judgment on a jury verdict for the Title VII sex discrimination plaintiff, but held that the award of $273,000 in punitive damages was excessive in light of defendant’s remedial efforts, and that $150,000 is the most that could be sustained. The court affirmed the award of $27,000 in compensatory damages, and held that the caps made it unnecessary to address the ratio between the punitive and compensatory damage awards. “When Congress sets a limit, and a low one, on the total amount of damages that may be awarded, the ratio of punitive to compensatory damages in a particular award ceases to be an issue of constitutional dignity . . . .” (Citations omitted.) The court also stated:
	As we emphasized in Mathias, moreover, capping the ratio of compensatory and punitive damages makes sense only when the compensatory damages are large, which the statutory cap on total damages in employment discrimination cases precludes. Suppose Lust had been emotionally sturdier and incurred only $10 in emotional injury from the delay in her promotion to Key Account Manager. Would Sealy argue that in that case the maximum award of punitive damages would be $100? So meager an award would accomplish none of the purposes, discussed in Mathias, for which punitive damages are validly awarded.
Id. at 591. The case cited is Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 675–78 (7th Cir.2003). The court went on to state that imposing the maximum penalty in a case involving “slight, because quickly